1. This civil rights action challenges that portion of the "Emergency Economic Stabilization Act of 2008" ... that appropriated $40 billion in taxpayer money to fund and financially support the United States government's majority ownership interest in American International Group, Inc. ("AIG"), which engages in Shariah-based Islamic religious activities that are anti-Christian, anti-Jewish, and anti-American. The use of these taxpayer funds to approve, promote, endorse, support, and fund these Shariah-based Islamic religious activities violates the Establishment Clause of the First Amendment to the United States Constitution.

2. This action also challenges the United States government's broad policy and practice of approving, endorsing, promoting, funding, and supporting Shariah-compliant financial products and business plans, such as Takaful Insurance. This governmental policy and practice conveys a message of endorsement and promotion of Shariah-based Islam and its religious beliefs and an accompanying message of disfavor of and hostility toward Christianity and Judaism and their religious beliefs in violation of the Establishment Clause.

This strikes me as a very hard position to sensibly defend. Parts of the argument are just "Islam is bad" (and not just radical jihadist Islam, but any branch of Islam that asks Muslims to invest only in businesses that comply with various rules about interest, alcohol, and the like). These surely can't advance the Establishment Clause claim; the Establishment Clause applies equally to Catholicism, Protestantism, Islam, or whatever else.

And to the extent the arguments don't focus on the purported flaws of Islam, they are shockingly broad. The theory is apparently that the government may not invest in any company that, in part of its operations, provides products that are tailored to a particular religious faith, and that may be accompanied by donations to religious charities. But lots of companies do this, for the simple reason that religious consumers have their religious tastes such as consumers have other ethical or esthetic tastes.

For instance, a food processing company might have a division that produces kosher products and donates some money to Jewish-specific charities (as a way of better wooing Jewish buyers). An investment company might seek to attract conservative Christian investors by offering a fund that doesn't invest in (say) hospital chains that perform abortions, and by donating some share of its profits to religious causes. Other companies might provide funds that don't invest in munitions manufacturers, to satisfy the desires of Quaker investors. A store might sell, among other products, religiously significant garments or religious symbols. A bookstore might sell religious books alongside other books.

Under the Complaint's theory, either Islam is subject to special constitutional constraints, or -- once that constitutionally forbidden legal rule is rejected -- all of these companies would somehow be forbidden as targets of government investments. The government couldn't bail them out. It presumably couldn't invest public employee retirement funds in them. It couldn't sell religious books alongside other books in public university bookstores, or serve kosher food alongside other food in public university cafeterias.

That's plainly wrong, under any sound theory of the Establishment Clause, or even under the broadest theories suggested by Justice Brennan and other Establishment Clause maximalists. The government investment decisions don't have a "primary religious purpose," because the obvious purpose is to prop up important companies -- and have them continue making as much money as possible -- and not to advance Islam. The government no more cares about advancing Shariah through the AIG bailout than my local Ralphs supermarket cares about advancing kosher laws by selling products that are certified kosher. The "primary religious effect" inquiry has always been extremely vague, but none of the precedents applying that inquiry would treat the continued provision by AIG of products that some religious customers like as a "primary religious effect."

The "endorsement" argument doesn't make sense here, because reasonable observers wouldn't treat the government's decision to bail out AIG, including its subdivision that sells financial products that Muslims prefer for religious reasons, as an endorsement of Islam. Again, the "endorsement" test is quite vague, but this is a pretty clear example: Making money by satisfying some customers' religious preferences (and lots of other customers' nonreligious preferences) isn't an endorsement of religion. Nor does the allegation that some of the money that is raised is donated to Muslim charities affect the analysis. That donating money to religious charities is good business for AIG doesn't make it impermissible for the government (which after all wants AIG to make as much money as possible, so the government isn't left paying the bill) to invest in AIG.

The only even theoretically plausible objection in such cases, I think, arises if the government becomes too entangled in the religious decisions of the company, for instance if government officials end up supervising the programs and deciding what Shariah law truly requires, or what really is or isn't kosher. But on the facts this just doesn't seem to be so: The operational decisions related to these religiously themed products and programs are made by the company (or perhaps even by the company's subcontractors), not by government officials. There seems to be no danger that some government officer would have to engage in quintessentially religious activities. And it is government decisionmaking, not government stock ownership, that triggers the Establishment Clause, which is one reason that government employee retirement plans can invest in companies without making them state actors governed by the Free Speech Clause, the Establishment Clause, the Due Process Clause, and so on. (This distinguishes the PrawfsBlawg hypothetical of a government-chartered school, which remains a government actor, engaging in religious education.)

If someone were advancing this broad a view of the Establishment Clause in some other case -- or trying to narrow the argument by limiting it only to certain Christian denominations, as the Complaint is trying to narrow the argument by stressing the supposed vices of Islam -- I would think that the Thomas More Law Center would and should protest. It's too bad that it's backing this argument here.

That lawsuit, at least as described, is absurdly attenuated and should be instantly dismissed. If that was how the Establishment Clause worked, virtually everything the government does would be prohibited.

Pretty much everything associated with the Thomas More Law School has been a bus wreck (except of course Thomas More himself, but he's been dead for a century). Unfortunately the Ann Arbor Observer does not have online archives, because there are some doozys of articles depicting the mismanagement at the school. If I were religious, I'd thank God that they left town.

To cut to the chase of the criticism of this lawsuit, all one has to ask is: if one replaced "Islam" with "Christian" throughout, which side would the More center come down on? It's obvious that this is just an anti-Islam screed, not a piece of legal analysis that should be taken seriously.

Eugene, I think you underestimate the merit of this suit (it's almost without merit rather than wholly without merit):

"Under the Complaint's theory [...] all of these companies would somehow be forbidden as targets of government investments. The government couldn't bail them out."

That theory is unlikely to succeed but shouldn't be dismissed out of hand. In the "even theoretically plausible objection" paragraph you write that:

"The operational decisions related to these religiously themed products and programs are made by the company (or perhaps even by the company's subcontractors), not by government officials."

If governments are to take ownership stakes in specific companies then at what ownership ratio do "the company" and "government officials" become effectively the same thing? Surely they'd be the same for a wholly government-owned enterprise, but why should that not also be true when the government stake is merely 80% instead of 100%?

This argument doesn't strike me as any sillier than (for example) the claim that it's unconstitutional to give parents of schoolchildren vouchers that would let them attend a parochial school.

Totally off-topic: Prof V., when you say "my local Ralph's supermarket" are you referring to the one in Westwood? I used to live in Westwood (and work and UCLA) and shop at that Ralph's (and the Long's above it). Ah, Westwood...

Yeah, I meant to write "several centuries". No need to wake the dead to correct a minor editing error (and what I wrote is technically correct, if a bit misleading - "he's been dead for an hour" would be correct too.) .

That lawsuit, at least as described, is absurdly attenuated and should be instantly dismissed. If that was how the Establishment Clause worked, virtually everything the government does would be prohibited.

Really? Then as a libertarian leaning person I give my enthusiastic support to this lawsuit!

If these donations were attempts to attract more buisness we would expect to see analysis about the ROI of various charitable donations. At the very least the deciscion about whether to donate would be made with statistics about the percentage of customers who are aware of the companies charitable donations in mind or some estimate of some other kind of indirect effect.

I expect that most donations made by companies are not truly rational attempts to maximize profits but rather attempts by the people in the business to "give back" to the community. While you might think this is unwise for a private concern this would be fine as far as the establishment clause goes but would not be acceptable for a government controlled institution.

Thus one might conclude that as a government controlled institution AIG was barred from making donations to religious charities in the manner they did previously. In order to make such a donation they would need to demonstrate some neutral criteria (e.g. a plausible analysis that such donation would maximize returns).

2) Would your argument allows the government to take over a church/synagogue or a company that sold proper copies of the Torah to synagogues?

Let's suppose that the government decided to bail out a company that provided religious services in some fashion. Now maybe the government official placed in charge of the program doesn't themselves make religious deciscions but their choice of the rabbi/priest/whoever who sets the standard for products sold/provided by the company in effect makes that choice. How does this case differ?

Agree with everything Proffessor Volokh has said. Just imagine the complaint with the word "Islam" scratched out and the word "Christianity" written in in crayon.

I'd also like to point out that financial products that happen to comply with certain religious rules in accordance with its customers needs aren't necessarily "religious goods" per se.

If that were the standard, government wouldn't be permitted to invest in companies that give their employees Christmas off, stores that have longer hours for the benefit of people shopping for Christmas, or companies that cater to and structure their production for the convenience of Christmas shoppers -- which is probably most retail businesses and a good bit of manufacturing and distribution to boot.

What AIG does for the convenience of Muslim customers is no different from what many American companies do for the benefit of Christian ones.

Finally, I want to mention that in my view a, a state would be entirely within its rights to pass a law prohibiting charging interest if its voters are convinced this would result in a more just economic system. The idea that usury is a bad thing is a general moral principle not specifically religious in character, just as the idea that slavery is a bad thing, or racial discrimination or abortion or gambling or dog-fighting, are equally permissable positions for a state to take. Whether I personally agree with it or not doesn't affect the constitutional analysis in the least. Unless specifically prohibited by the Constitution, all the world's great ethical systems and philosophies are up for grabs as possible ways to guide government and are worth whatever consideration they can garner in the marketplace of ideas. Legislatures are permitted to pick and choose different principles from different moral systems as they see fit.

I'm surprised the Thomas More Center would adapt the view of the Establishment clause that would prohibit government from supporting or adapting ethical and moral principles that happen to be consistent with one or more of the world's major religions. Such an approach would lead to a results that would seem to be the complete opposite of everything the Center claims to stand for.

If these donations were attempts to attract more buisness we would expect to see analysis about the ROI of various charitable donations.

If they actually calculate ROI on "PR" donations on a regular basis, their donations to the favorite charities of politicians who happen to vote the way the company happens to desire might stick out. :)

I'm surprised the Thomas More Center would adapt the view of the Establishment clause that would prohibit government from supporting or adapting ethical and moral principles that happen to be consistent with one or more of the world's major religions. Such an approach would lead to a results that would seem to be the complete opposite of everything the Center claims to stand for.

Perhaps I'm being overly cynical here, but I think you're deeply underestimating the difference between commitment to sound legal principles and the commitment to the advancement of a particular ideal.

A good example, and perhaps one that's not quite so controversial is the example of the "atheist Christmas sign" in the Washington State Courthouse. (a sign that contained a poem describing religion as myth and superstition)

Numerous christian leaders have spoken about the sign and may of them have talked about the legal idea of "religious freedom" but nearly all have done so in a way that shows they have little understanding of the actual doctrine at stake. They either can't conceive of or don't care that the doctrine doesn't allow the state government to restrict "religious" displays by the content of the group that put it up.

This seems to be a similar principle at work. The overarching legal principle isn't as important as the fact that "It's ISLAM!!!!Eleventyone!11"

If that were the standard, government wouldn't be permitted to invest in companies that give their employees Christmas off, stores that have longer hours for the benefit of people shopping for Christmas, or companies that cater to and structure their production for the convenience of Christmas shoppers -- which is probably most retail businesses and a good bit of manufacturing and distribution to boot.

Remind me, doesn't the Federal Government give most of their employees Christmas off?

One of the things that makes the question of Islam and religious freedom in this country a legitimately hard question is that Islam is not just a religion-- it is a social framework with its own legal traditions, rules, and so forth. It is far less a "religion of peace" than it is a "religion of law." It is not a religion where faith is a private matter, but where faith is a public matter which is intrinsically connected with politics.

I think there is a greater tension between our republican ideals and those of Islam than there is with Christianity at least as far as the sects agree on basic ideas. However, I don't think there is more than there was with the Communist Party, so I don't think that is a reason to simply get rid of our Constitutional protections against establishment and free exercise just for this reason.

The fact is that we need two things (both of which are almost certain to go against the grain of this lawsuit): reaffirming religious freedom (by dismissing this lawsuit and others), and engaging in free and open dialog about the legitimate concerns. Constantly reminding Muslims that there are a lot of people in this country unconditionally opposed to their religion is not helpful in facilitating reconciliation between the ideals of our republic and their religion. Many religious groups (for example, in the religious right) carefully cultivate such an agonal perspective so that they don't have to address the questions. We should frame our public policy to help diffuse as much of that agonal approach as possible.

Your statement "This strikes me as a very hard position to sensibly defend. Parts of the argument are just "Islam is bad"

Whats wrong with that, its correct

....Islam IS bad, especially in a Western democracy. Unless it comes to a reformation process and enters modernity, then it is simply incompatible. At least as the monied Saudi's version is infesting the West and other countries with the wahabbi nests.

And their "demands" need not be addressed. They came here, and anyone that comes here knows the drill....you can always go back if it not to your liking.

The more I think about this, the less sure I am that TMLC is taking a position it would not take if you wrote "Christian" in the place of "Muslim."

TMLC is not the Becket Fund or even the Alliance Defense Fund. It may, in fact, be pursuing a vision of religious freedom that involves strict separation.

TMLC is bankrolled by delivery-pizza tycoon Tom Monaghan. Recall that his big project has been to develop a separatist company-town community of his type of Catholic in the swamps of Florida. He realizes he isn't going to get pornography and contraception banned, so he's trying to move away from it and use a range of proprietary powers to keep it off his land. I don't think he's looking for a government to help him out much, just to stay out of his way and not enforce pesky individual rights.

My caricature of Tom Monaghan would follow this strategy:

1. Fight against vouchers. Catholics have paid for decent religious schools without them. Vouchers only help upstarts and end up requiring us to compete.

2. Fight against "faith-based initiative" funding. There are too many government strings and, again, we've done fine without them.

3. Don't worry about employee rights of conscience. Hey, if you were truly a person of faith, you wouldn't work at a hospital or pharmacy that even asked you to commit sins!

4. Do push for employer and landowner exemptions to anti-discrimination laws. That's the key to Ave Maria!

5. Do fight for broader government speech on religion, because it will tend to help you.

Disappointingly, the actual Tom Monaghan supports vouchers--although he has suggested that the Catholic Church spin its schools off to achieve economies and limit liability. I don't know about the others.

But it's a strategy someone could try. It's worthwhile to remember that many Christian schools initially thought vouchers would be a bad thing.

Judaism is a similar sort of religion of law, but specifically related to Jews, and Christianity can be argued to have begun as a reaction against this. There is nothing in Christianity which is comparable to Sharia in terms of how central it is to the tradition. This is why some people call Mohammed a great law-giver (and compare him to Moses) but don't say the same about Christ.

Judaism is very similar in this way, it is true, which is why Israel as a state recognizes Sharia law as valid for settling civil disputes between Muslim and Druze citizens. Once again, Jews don't expect non-Jews to live by Jewish law, nor seek to convert non-Jews, and Christianity seems rather schizophrenic regarding sacred law.

Also the Medieval relationship between church and state was not theocracy per se, but rather a bit of symbiotic tug of war. Instead it inherited from Rome the twin offices of Pontifex Maximus and monarch/emperor.

Islam is different because the system is freed from a lot fo the paradoxes which plague Christianity and Judaism by retaining the legalistic approach of the latter with the universal emphasis of the former. And the first Islamic state was a Theocracy which was not the case with Christianity.

However, my point is that these are problems which cause many people to be worried, but they shouldn't cause us to go beyond the understanding that additional discussion and dialog is important.

BTW, the issue is not a matter of Islam being backwards or intolerant. Islam has a better track record of religious tolerance than does Christianity, and is arguably more forward-thinking than other Abrahamic religions (with the possible exception of the Bahai'i).

The issue is that Islamic scripture and history treat the temporal and religious authorities as a single body, and thus the mosque and the state are fundamentally unified in Islamic thought in a way that they are not in other related religions. This is a concern about structure of Islamic approaches to politics which is unique to that tradition.

One other point is that I don't think that Islam is necessarily more dangerous than, say, radical right-wing Christianity. However, the collision course is a bit different, and the two groups pose remarkably different challenges.

One commenter on the Secular Right blog made a very good point: Yes, this lawsuit is an overreach, but maybe we need the occasional overreach on one side to counteract the effects of overreaches by the other (such as, to repeat one example he cited, Muslim cab drivers refusing fares with alcohol). Two wrongs may not make a right, but two wrongs that cancel each other out are still preferable to one left unchecked.

einhvre: "One of the things that makes the question of Islam and religious freedom in this country a legitimately hard question is that Islam is not just a religion-- it is a social framework with its own legal traditions, rules, and so forth. It is far less a "religion of peace" than it is a "religion of law." It is not a religion where faith is a private matter, but where faith is a public matter which is intrinsically connected with politics."

You might be right, but many Christianists would disagree, as they maintain that America was founded upon Christian laws and principles, and that all our laws are based on the Bible.

Naturally, they are wrong, of course, but that hasn't stopped them from asserting it. And that would mean that they aspire to the same position as you claim Islam has.

Two wrongs may not make a right, but two wrongs that cancel each other out are still preferable to one left unchecked.

I look forward to your explanation of how the wrong of the government's discriminating against businesses that cater (in a completely legal fashion) to Muslims, will "cancel out" the wrong of individual Muslim cabbies' discriminating against customers who carry (in a completely legal fashion) a substance anathema to strict Muslims.

To me, the two have nothing in common except both relate to the Islamic faith -- and even then relate to different parts of it, since the most important part of AIG's "sharia" business has nothing to do with alcohol but instead is about the Muslim proscription (at one time shared by Christianity) on lending money at interest. When I was looking at working for British law firms that advise on how to be compliant with this restriction while making complex deals, I must admit that I never realized I'd be part of financing the next 9/11.

The legal case is obviously bogus, but the "financing the next 9/11" claim is not; the problem is not donations to Moslem causes per se, but inadequate supervision over which Moslem causes the donations are going to. Any Moslem charity should be presumed to finance terrorism, directly or indirectly, unless a thorough investigation proves otherwise. And that investigation has to be carried out by people who are themselves beyond suspicion of support for jihad.

By the way, concern over charging and/or paying interest, and ways of getting around that, are not unique to Islam. Judaism forbids Jews from paying interest to other Jews, or accepting interest from them, and observant Jews who wish to lend money to each other must either do so for free, or structure the transaction as something other than a loan. So any law, regulation, or court decision that would put obstacles in the way of such structured transactions is something that should concern observant Jews as well as Moslems. I don't know whether the people behind this suit know about that, or if so whether they care.

Besides zero interest in business dealings, part of the requirements to meet Shariah Financing laws are to give charity to Islamic groups, and abstain from dealing with alcohol and pork related products and businesses.

Thus the issue isn't whether such requirements are bad per se, but whether a government agency should be required to fulfill these religious dictates. Do we want AIG's sub's asking the a company who wants to buy some insurance whether they deal with pork sausages? Further, what charities would this state funded entity give their money to? Who determines who is 'Islamic' enough to meet the zakat requirements? Such state funded intrusions into what would be considered immaterial factors for religious purposes is exactly what the Establishment Clause is meant for.

Would it be acceptable for AIG's subs's to ask businesses whether they had a cross on their walls in order to meet some hypothetical requirement for canon law based financing rules? Or to give a tithe to the Catholic Church in order to sell 'Cathoic' financial products? Of course not.

The legal case is obviously bogus, but the "financing the next 9/11" claim is not; the problem is not donations to Moslem causes per se, but inadequate supervision over which Moslem causes the donations are going to.

I also find it amusing that it is illegal to donate money to Hamas but not to the KKK.

I understand that this case is silly because AIG is about as relevant to Sharia law as your average big-box grocery store is to kosher foods. But I don't understand how a government decision to take a majority ownership stake in the company doesn't qualify as "government decisionmaking" that must at least be considered for legality.

Would it be alright for the government to take a controlling stake in company that derived 100% of its revenue from Sharia financial products? Or expanding the scenario, is the government allowed to own a company that specifically supports a particular religion? (e.g. Clothing manufacturer that makes only Catholic priest robes, or a food processor that makes only communion wafers, etc)

I don't see why not. Remember, the government is not deciding what financial arrangements, food, clothing, etc. are religiously acceptable; that decision is made by the customers. The company (and therefore the government) is only deciding what is likely to be acceptable to those customers, and for that purpose it pays a consultant to advise it. If it gets it wrong (as governments are wont to do) the customers will leave and the company will lose money. It therefore behooves the government to manage the company at arms length, with no political interference. That's difficult-to-impossible to do in the long term, but much easier for a short time until its stake can be sold at a profit.

Unless I misread the post I don't take Joshua to be arguing that it would be good if they prevailed only that it might be good that the lawsuit was filled.

I mean one might reasonably think that while lawsuits like this are filled with the worst of motivations but that a secular government will be maintained via the various religions acting to keep each other in check.

This lawsuit is foolish. The plaintiffs are ignoring the fact that most of the major banks that have received aid under the various bailout programs implemented by the federal government over the past year also offer Shariah compliant products through their subsidiaries. To date, according to calculations done by CNBC, the federal government has extended over $7 trillion in aid (loans, loan guarantees, equity stakes, etc.) to the finanical services industry (banking, securities, and insurance). If it had to limit this aid to only financial service providers who don't offer Shariah compliant products and services, then major players in the financial services industry, such as Citigroup, would be going the way of Lehmans and our financial services sector would collapse.

As others in this thread have pointed out, the Shariah compliant products would also comply with the dictates of other religions that prohibit usury. If the Catholic Church still treated the charging of any interest as usury (as it did in the Middle Ages), then the Thomas More Center would be promoting these products as compliant with Catholic Social Thought. In fact, in his Utopia, Sir Thomas More eliminated usury.

The financial institutions that offer these products are doing so to tap into a market that they could not otherwise reach. They would be happy to offer similar products to any clients who wanted such products, whether out of religious motivation or a simple philosophical opposition to mainstream financial products. None of these financial institutions are particularly interested in promoting a particular religious point of view.

I note that no one is suggesting that this pleading may be designed to fail. If the court rejects the complaint about Islam and Sharia, won't it be harder to press a similar suit regarding Catholic or Jewish or (your sect here) related enterprises?

The last paragraph is funny - it almost looks as if you expected the TMLC to have principles. Yeah, right. If they had principles they'd be fighting against the many examples of pro-Christian bias in this country - and that would destroy their funding base.

Milhouse:

Any Moslem charity should be presumed to finance terrorism, directly or indirectly, unless a thorough investigation proves otherwise.

Guilty until proven innocent, you saw it here first. (Well, actually not first - McCarthy and many other historical examples have used similar standards.) The paranoid style is alive and well, I see.

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